Loading...
HomeMy WebLinkAbout21 - Appeal of Director's Determination No. DD2021-001 Interpreting Accessory Residential as an Allowed Use within Resort Hotels - SPON PresentationAugust 24, 2021 Item No. 21 Appeal of Director's Determination STOP POLLUTING OUR NEWPORT AUGUST 24, 2021 Summary of Concerns "Interpretation" impermissible when plain language is clear. Requires General Plan Amendment Triggers Greenlight Initiative Director's Determination is a project. Violates LCP and Coastal Act Required Findings cannot be made. The "Interpretation" is neither necessary nor permissible. In the absence of ambiguity, the plain meaning of the language in the City's municipal code is controlling. There is no ambiguity that requires "interpretation" or deference to the Director here. Hotel: "an establishment that provides guest rooms for a fee to transient guests for sleeping purposes." (Titles 20 and 21) Residents are neither guests nor transient When an interpretation occurs, it must be reasonable. Interpreting a word to mean its opposite is objectively unreasonable. Statutory Interpretation Starts "with the language of each statute, giving the words their usual and ordinary meaning, and construe the statutory language in the context of the statute as a whole and the overall statutory scheme, giving significance to every word, phase, sentence, and part of an act." Interpretations "should endeavor to promote rather than defeat the statute's general purpose, and avoid a construction that would lead to absurd consequences." Lincoln Place Tenants Assn. v. City of Los Angeles (2007) 1 15 Cal.App.4t" 425, 440-41. General Plan definitions are also illustrative. Hotel: "a facility in which guest rooms or suites are offered to the general public for lodging ... and where no provision is made for cooking in any individual guest room or suite." Dwelling unit: "one or more rooms, designed, occupied, or intended for occupancy as separate living quarters, with cooking, sleeping and sanitary facilities provided within the unit..." Sets precedent for City where interpretations "fill a gap" between what is allowed and what an applicant wants. Newport Beach has expressly declined this interpretation in the past. Greenlight Initiative Newport Beach Charter, Section 423 Voter approval is required for any major amendment to the Newport Beach General Plan. A "major amendment" is one that significantly increases the maximum amount of traffic that allowed uses could generate, or significantly increases allowed density or intensity. "Significantly increases" means over 100 peak hour trips (traffic), or over 100 dwelling units (density), or over 40,000 square feet of floor area (intensity) Director's Determination "significantly increases allowed density" pursuant to Greenlight's defined terms (100 dwelling units) Affected Planning Areas could receive - 250 new rooms Airport Area limited to 820 hotel rooms by General Plan 30% conversion > 100 dwelling units 4 Triggers Greenlight Newport Center limited to 827 hotel rooms by General Plan 30% conversion > 100 dwelling units 4 Triggers Greenlight 28 new dwelling units allowed without a public vote. These 28 units are already under consideration by the City. Director's Determination is a Project Currently, hotel rooms may not be converted to residential units at all. Under the Director's Determination, an entitlement may be sought to make this conversion. Thus, the Director's Determination allows the future establishment of residential units where none were previously allowed. In this way, the Director's Determination acts like a General Plan Amendment by changing the menu of options for future entitlements on the affected properties. Future processes may address environmental impacts, but the Director's Determination establishes ability to ask for residential units at these sites. Coastal Act Coastal Act and Local Coastal Program apply to entire Coastal Zone; they are not limited to the "appealable" area. California Coastal Act requires the City provide "maximum access" to coastal resources Additional protections and priorities for visitor -serving facilities and lodging City's Local Coastal Program (LCP) prohibits conversion of hotel rooms existing on or before July 14, 2009 (21.48.025D) "To conclude, the Development Director's Determination must not be applied in the coastal zone because the action requires an LCP amendment" - Letter from Coastal Staff to City, Aug. 20, 2021 The City Cannot Make Required Findings Title 20 requires the City to make specific findings, supported by substantial evidence, before the Director may allow a land use not explicitly listed. Finding A: No support for claim that parking needs will be lower. Finding C: Removal of hotel rooms does not support goals, objectives, and policies of LCP (which prohibits conversion) . Finding D: Residential uses are allowed in other districts in the City. The Council's Direction was Not Final Staff Report now claims, for the first time, that Council Policy K-4 is final and effective. This argument was not made in the Planning Commission Staff Report, which focused on the purpose, need, and authority for the Director's authority to make the "interpretation." Council Policy K-4 "directed" but did not, itself, finalize any action. States Council will "pursue any needed amendments to accommodate" changes at mixed-use resorts (Staff Report p. 3.) "Any amendments pursued would consider the need to comply with the City's Charter Section 423." (Staff Report p. 3.) The policy does not make required findings. General Plan Update The City is currently updating the General Plan and its elements to accommodate the City's RHNA. Incorporation of the Director's Determination, as directed by Council Policy K-4 promotes efficiency and ensures that policies meant to increase housing opportunities in the City will actually meet those goals.